Cannabis Use and Pregnancy – Changes in the Law 

by Warren Edson

During the 2020 legislative session, the Colorado Legislature passed Senate Bill 20-028.  SB20-028 was signed into law by the Governor on June 30, 2020.  Among other changes, this bill modified the language in Colorado Revised Statues 19-1-103 and 19-3-102, formerly known as the ‘testing positive at birth’ test, requiring removal for any positive drug test for a schedule I controlled substance.

Let’s start with the fact that despite all the changes in State laws, cannabis is still designated a Schedule 1 drug by the Federal Government.

Previously CRS 19-1-103 defined “abuse” or “child abuse and neglect” as when a child tested positive at birth for a schedule 1 controlled substance.  SB20-028 changed that to make an exception where cannabis was “TAKEN AS PRESCRIBED OR RECOMMENDED AND MONITORED BY A LICENSED HEALTH CARE PROVIDER, AND THE NEWBORN CHILD’S HEALTH OR WELFARE IS THREATENED BY SUBSTANCE USE”.

Previously CRS 19-3-102 defined a child as dependent and neglected when they tested positive a birth for a schedule 1 controlled substance.   SB20-028 changed that statute to make an exception where cannabis is “TAKEN AS PRESCRIBED OR RECOMMENDED AND MONITORED BY A LICENSED HEALTH CARE PROVIDER, AND THE NEWBORN CHILD’S HEALTH OR WELFARE IS THREATENED BY SUBSTANCE USE.”

Please note that the Mother must have a recommendation for cannabis prior to the birth of the child  and the use must be monitored by a licensed health care provider.   We have some concerns that if the patient is only seeing the physician who recommends cannabis once a year that might not be enough to be considered “monitored by a health care professional.”

Also of interest are two other nuances.  The use of the term “recommended” is fascinating because the only controlled substance that is “recommended”, not prescribed, is cannabis.  Who ever crafted this language specifically used this word to clarify that cannabis use is included in these modification.

The second item of interest if the addition of the phrase “and the newborn child’s health or welfare is threatened by substance use.”  So not only would the department have to prove that the cannabis use was not recommended by a physician but that such use would also threaten the newborn child’s health

The final cliff notes version of SB20-023 is that social services can no longer take children at birth where the child tests positive for cannabis is the cannabis was recommended by a physician and the use was monitored by a licensed health care provider.

 

CANNABIS USE AND PREGNANCY by Warren Edson

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